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Greetings, Court Fans!

Yesterday, the Court announced three opinions, including one that’s already making headlines:

• In FDA v. Alliance for Hippocratic Medicine (No. 23-235), a unanimous Court held that a group of emergency-room doctors and medical associations lacked standing to challenge the FDA’s expanded approval of the abortion drug mifepristone, thereby vacating a lower-court injunction regarding the use of the drug.
• In another significant decision, Vidal v. Elster (No. 22-704), the Court unanimously brushed back a First Amendment challenge to the Lanham Act’s “names clause,” which precludes registration of a trademark that consists of or comprises a living person’s name without his consent, but with a sharp disagreement on a rationale.
• And in Starbucks Corp. v. McKinney (No. 23-367), a (mostly) unanimous Court held that the NLRB’s request for a preliminary injunction should be evaluated with the ordinary four-factor preliminary-injunction test and not with a different two-part test some courts have used in the context of labor disputes.

Then this morning, the Court followed up by announcing three more decisions:

• Garland v. Cargill (No. 22-976), in which a 6-3 Court held that the ATF exceeded its statutory authority by banning bump stocks as “machineguns.”
• Campos-Chaves v. Garland (No. 22-674), where a 5-4 Court held persons ordered removed from the United States received proper notice, precluding them from trying to rescind their removal orders.
• And Office of the United States Trustee v. John Q. Hammons Fall 2006 LLC (No. 22-1238), where a 5-4 Court held that Chapter 11 debtors who were charged higher filing fees in violation of the Bankruptcy Clause’s uniformity requirement were not entitled to refunds.

In today’s update, we’ll talk about Alliance for Hippocratic Medicine, Starbucks, and three other recent decisions:

• Truck Insurance Exchange v. Kaiser Gypsum Co. (No. 22-1079), where a unanimous Court rejected the so-called “insurance neutrality” doctrine and held that an insurer with a coverage obligation for bankruptcy claims has standing to object to its policyholder’s bankruptcy plan.
• Coinbase, Inc. v. Suski (No. 23-3), unanimously holding that when parties have two conflicting contracts as to arbitration—one requiring disputes to be arbitrated and the other sending disputes to the courts—a court must decide which contract governs, even if the first contract delegates the arbitrability question to an arbitrator.
• And Brown v. United States (No. 22-6389), where a 6-3 Court held that state drug convictions can count as predicate offenses under the Armed Career Criminal Act if they involve a drug that was listed on federal drug schedules at the time of conviction, even if that drug is later removed.

Yesterday’s marquis case (and one of the more-watched cases of the term), FDA v. Alliance for Hippocratic Medicine (No. 23-235), concerned a challenge to the FDA’s approval of mifepristone. But to the surprise of almost no one who was paying attention, the case turned out to be much less controversial than most SCOTUS forays into the issue of abortion access. The most controversial of those, of course, was Dobbs v. Jackson Women’s Health (2022), in which the Court overturned the second and third most controversial, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). (Okay maybe all three are tied.) Through Dobbs, the majority hoped to extricate the Court from this divisive issue—as Justice Kavanaugh put it in his concurrence, “[a]fter [Dobbs], the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans.” But de-constitutionalizing abortion does not insulate it from litigation and, sure enough, within hours of the Court’s decision—and for weeks and months thereafter, litigants were back in federal courts seeking to further restrict, or alternatively defend, abortion access.

One such litigant was the Alliance for Hippocratic Medicine (AHM), a coalition of anti-abortion medical associations that was incorporated just weeks after Dobbs in Amarillo, Texas. Why did a consortium of non-Texan advocacy groups decide to incorporate in Amarillo? Well, it is the “Helium Capital of the World,” but another reason could be that it is the seat of the Amarillo Division of the North District of Texas, which has just one District Judge, a former attorney for the Christian conservative legal organization First Liberty Institute named Matthew Kacsmaryk. Having established venue, AHM and a handful of individual doctors filed suit in November 2022, seeking to challenge the Food and Drug Administration’s approval (back in 2000) of “Mifeprex,” a drug-application for mifepristone tablets used for medication abortions. The FDA first approved Mifeprex for use in terminating pregnancies in 2000, but only in the first seven weeks of pregnancy and only when prescribed by a licensed physician after three in-person visits. In 2016, the FDA relaxed some of those restrictions, extending its approval to terminations up to ten weeks and permitting other healthcare providers, including nurses, to prescribe Mifeprex after just one in-person visit. And in 2021 (in response to the pandemic), the FDA eliminated the requirement of an in-person visit altogether. In their complaint, AHM and the individual doctors challenged all these FDA actions and sought a preliminary injunction requiring the FDA either to rescind its approval of Mifeprex and generic mifepristone or, at a minimum, to rescind the 2016 and 2021 actions relaxing restrictions on their prescription and use.

Judge Kacsmaryk sided with the plaintiffs across the board and issued a preliminary injunction that effectively banned Mifeprex (and the generic mifepristone) from the market. The FDA appealed (along with Mifeprex’s “sponsor,” intervenor Danco Laboratories), and the Fifth Circuit modified (and stayed) the District Court’s injunction, but otherwise upheld Judge Kacsmaryk’s decision. The Fifth Circuit held that the plaintiffs did have standing to challenge the FDA’s actions and it agreed that they were likely to succeed in their challenge to the FDA’s 2016 and 2021 actions relaxing restrictions on Mifeprex and mifepristone. But it vacated Judge Kacsmaryk’s preliminary injunction to the extent it struck down the FDA’s original approval of Mifeprex in 2000 and of generic mifepristone in 2019. The Supreme Court granted cert solely on the question of whether the District Court properly enjoined the 2016 and 2021 actions.

In a unanimous decision, the Supreme Court vacated the injunction on the ground that neither AHM nor the individual plaintiff had standing to challenge any of the FDA’s actions. Writing for the Court, Justice Kavanaugh explained that Article III standing is a “bedrock constitutional requirement” that is “built on a single basic idea—the idea of separation of powers.” The Court has long rebuffed the efforts of citizens and organizations to “press general complaints about the way in which government goes about its business” without having a “personal stake” in the matter. Recounting black-letter law, Kavanaugh enumerated the three irreducible requirements of Article III standing: (1) that the plaintiff has or likely will suffer an injury in fact; (2) that the injury likely was or will be caused by the defendant; and (3) that the injury would be redressed by the requested judicial relief. Of note, Kavanaugh identified injury and causation as the “two key questions in most standing disputes.” The injury-in-fact requirement screens out plaintiffs who have only a “general legal, moral, ideological, or policy objection to a particular government action.” And the causation requirement screens out cases in which a plaintiff “challenges the government’s ‘unlawful regulation (or lack of regulation) of someone else.’”

Applying these requirements, Justice Kavanaugh concluded that none of the plaintiffs—neither the AHM nor the individual doctors—had standing to challenge the FDA’s 2016 and 2021 regulatory actions. While the plaintiffs had sincere objections to mifepristone being used or prescribed by others, an objection about the government’s regulation of (or failure to regulate) another is generally not enough to satisfy Article III’s causation requirement. And none of the plaintiffs’ alleged theories of injury and causation withstand scrutiny.

Justice Kavanaugh first rejected the theory that the FDA’s relaxation of restrictions on the use of the drug could cause “downstream conscience injuries to individual doctor plaintiffs,” observing that federal law amply protects doctors from being forced to participate in abortion-related medical treatment over their conscientious objections. While the plaintiffs alleged that these protections were insufficient, they failed to identify any instances in which a doctor was required to provide abortion-related treatment over his or her conscientious objection.

Next, Justice Kavanaugh rejected plaintiffs’ assertions that the relaxed regulation of Mifeprex and mifepristone would cause economic injuries to doctors by virtue of diverting their time and resources from other patients to treat patients who present with complications from medication abortion. Kavanaugh concluded this was a highly speculative causal link, and it would greatly undermine standing jurisprudence to allow doctors and medical associations to challenge any law or regulation simply because it would result in more individuals showing up asking for treatment.

Finally, Justice Kavanaugh rejected AHM’s assertion of organizational standing. Although the Court (in a case called Havens Realty v. Coleman (1982)) has recognized that organizations may have standing “to sue on their own behalf for injuries they have sustained,” Kavanaugh stressed that this doctrine is a narrow exception to the general standing rules that the Court has been reluctant to expand. AHM cannot establish standing simply based on the intensity of its opposition to abortion, nor upon the fact that it has incurred costs to challenge the FDA’s actions. As Kavanaugh observed, “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.”

In sum, all nine Justices agreed that the AHM and the individual doctors who challenged the FDA’s actions could not show an injury in fact caused by the FDA’s actions and redressable through the courts. The Court thus unanimously reversed the Fifth Circuit and the Lone (Star) Judge of Amarillo.

Justice Thomas, though joining the Court’s opinion in full, wrote separately to explain why, in his view, the Court should revisit the idea of “associational standing,” under which an association has standing to bring suit on behalf of its members if (1) the members would otherwise have standing; (2) the interests the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In Thomas’s view, “associational standing” is simply a species of “third-party standing,” a doctrine he has railed against for many years. Like third-party standing, associational standing undermines the constitutional separation of powers because it relaxes both the injury and redressability requirements for Article III standing. The courts have developed a workaround for this problem through the invention of the “universal injunction,” but that remedy too is “legally and historically dubious.” Instead, because “no party should be able to obtain an injunction in favor of nonparties,” Thomas would conclude that no association can do so either. Thomas recognized that no party had challenged the Court’s associational-standing doctrine, but encouraged future litigants to do so, so that “[i]n an appropriate case,” the Court could “address whether associational standing can be squared with Article III’s requirement that courts respect the bounds of their judicial power.”

Truck Insurance Exchange v. Kaiser Gypsum Co. (No. 22-1079) arises from the Chapter 11 bankruptcy of several related companies that faced thousands of asbestos-related lawsuits over their manufacture of asbestos-containing products several decades ago. Even with the benefit of liability insurance provided by Truck—whose policies covered up to $500,000 per claim, with no aggregate limit on coverage—the Kaiser companies could no longer operate without bankruptcy protection. After petitioning for Chapter 11 bankruptcy, which allows companies to restructure and operate as going concerns, the creditors (primarily plaintiffs alleging they were harmed by the companies’ products) and the debtors together proposed a plan that would move the insurance benefits into a trust for the victims of asbestos injuries and would shield the debtors from any exposure to those claims, except for paying a small deductible.

Courts and commentators have expressed increasing concern in recent years that asbestos-related bankruptcies like Kaiser’s are beset with fraud and abuse. Particularly worrisome is the problem of claimants asserting duplicative claims against multiple bankrupt entities, leading to multiple recoveries. To try to address that problem, many asbestos-related bankruptcy plans have begun to incorporate disclosure obligations and other measures to prevent the assertion of fraudulent claims. Kaiser’s proposed plan included many of those features, but significantly, it limited those protections to a very small set of claims that weren’t covered by Truck’s policies, providing no similar protections for the (much larger) share of claims that Truck would have to cover. Truck understandably objected to this disparate treatment, arguing that the creditors and the debtors had colluded against it in fashioning the plan and that the lack of fraud protections for covered claims exposed it to excessive liability. But the Bankruptcy Court, the District Court, and the Fourth Circuit all rebuffed Truck’s objection, concluding that it lacked standing. In doing so, these courts relied on the so-called insurance-neutrality doctrine, under which an insurer like Truck has standing to object to its policyholder’s bankruptcy plan only if the plan alters the insurer’s contractual rights and obligations under its insurance policy. Because Truck would have been responsible for these claims if Kaiser hadn’t declared bankruptcy, the bankruptcy plan didn’t actually alter its rights and obligations. But other courts have rejected the insurance-neutrality doctrine, so the Supreme Court granted cert to resolve the split.

A unanimous Court reversed the Fourth Circuit and rejected the insurance-neutrality doctrine used by it and other courts to deny insurers a seat at the table in bankruptcies. (Justice Alito recused for an undisclosed reason, presumably not involving flags.) Writing for the Court, Justice Sotomayor began with the relevant provision of the bankruptcy code, 11 U.S.C. §1109(b). It provides that any “party in interest” can “raise” and “be heard on any issue” in a Chapter 11 bankruptcy. While the phrase “party in interest” is readily comprehensible on its own, Section 1109(b) also lists several examples that are “illustrative but not exhaustive.” What those examples all have in common is that they describe parties who may be “directly affected by a reorganization plan” because they have a financial interest in the estate’s assets or represent parties who do. And if the interpretation of the statute’s plain language weren’t enough, Sotomayor noted that it accorded with Collier’s (the leading bankruptcy treatise) view of the relevant provision, and it was consistent with the Court’s observation in a prior case that Congress uses the phrase “party in interest” in bankruptcy laws when it wants a “provision to apply broadly.” Finally, Sotomayor noted that this more expansive interpretation fits the “historical context and purpose,” namely that “Congress consistently has acted to promote greater participation in reorganization proceedings.”

Having decided what “party in interest” means, the Court found it self-evident that insurers, like Truck, with financial responsibility for bankruptcy claims satisfy this definition. They are plainly “directly affected by a reorganization plan” given the countless ways the plan can affect their legal or economic interests, such as the right to control settlement or defend claims or to seek contribution from other carriers. And Truck alleged a direct harm to its interests here given its assertion that Kaiser’s plan was “collusive,” in violation of its duty to cooperate and assist Truck, and that it would result in Truck facing greater liability.

What of the insurance-neutrality doctrine? Here, Justice Sotomayor pulled no punches: Despite being the majority rule in the federal circuits, she concluded it was “conceptually wrong and makes little practical sense.” Its basic defect was that it “conflates the merits of an insurer’s objection with the threshold … question of who qualifies as a ‘party in interest.’” And its exclusive focus on whether the bankruptcy plan impairs the insurers’ contractual rights and obligations under its policy “wrongly ignore[d] all the other ways in which bankruptcy proceedings and reorganization plans can alter and impose obligations on insurers.”

All of this comes with a significant caveat, however. While Section 1109(b) may give insurers “a voice in the proceedings,”—i.e., the right to “raise” and “be heard on any issue,”—it grants them “neither a vote nor a veto.” Thus, while the insurance-neutrality doctrine may be dead as a doctrine of standing, its animating principles may continue to live on in how courts resolve insurers’ objections to bankruptcy plans. Absent some direct impairment of an insurer’s contractual rights and obligations under its policy, courts may conclude that the insurer’s objection has no merit.

Finally, the outcome of the case is a useful reminder that you should never read too much into oral argument. At argument, many Justices seemed to coalesce around a separate (and narrower) rationale for holding that Truck had standing: that it was a creditor (rather than a party in interest). But the creditor theory earned no more than a passing no-need-to-decide-this footnote. While that narrower ground seemed plainly available and attractive to the Justices, ultimately the Court seemed to want to provide more guidance to the federal courts. They did that here, in a decision with broad significance to insurers covering claims of bankrupt policyholders, which will extend not only to cases (like this one) involving asbestos, but also other mass torts, such as claims of institutional responsibility for sexual abuse, pollution and environmental claims, and product liability over lead paint or forever plastics.

Next up is Starbucks Corp. v. McKinney (No. 23-367), in which the Supreme Court resolved a circuit split on the standard district courts must apply when the National Labor Relations Board (NLRB) seeks a preliminary injunction in aid of an ongoing agency proceeding. An eight-Justice majority rejected some courts’ use of a laxer standard that favored the NLRB, instead requiring the NLRB to satisfy the same four-part test for obtaining a preliminary injunction used in any other context.

The case starts with the NLRB commencing an administrative proceeding against Starbucks. It alleged that the coffeehouse chain had engaged in an unfair labor practice when it fired several employees who had started a union campaign at a Memphis store, which included their inviting a TV news crew to visit the store after hours to promote the unionizing effort. But soon after the agency initiated this administrative proceeding, it went to court to obtain a preliminary injunction requiring Starbucks to rehire the employees while proceedings were pending. The District Court entered the injunction pursuant to §10(j) of the National Labor Relations Act (NLRA), which authorizes the NLRB to petition a district court for temporary relief, which the court can grant “as it deems just and proper.” The District Court (and then the Sixth Circuit) approved the injunction, relying on Sixth Circuit precedent that authorizes an injunction if “there is reasonable cause to believe that unfair labor practices have occurred” and if injunctive relief is “just and proper.” While that same two-part test is used by some other circuits (including the Third and Fifth), several others instead use the familiar four-part preliminary injunction test articulated in Winter v. Natural Resources Defense Council.

The Supreme Court reversed in an 8-1 decision authored by Justice Thomas. Absent specific legislative language to the contrary, the Court held that the NLRB’s power to seek a temporary injunction is subject to longstanding, traditional equitable principles, which require a court to weigh the four factors set out in Winter. Specifically, that test asks whether the party seeking the injunction has made a clear showing that (1) it is likely to succeed on the merits, (2) it likely will suffer irreparable harm absent preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. The Court saw nothing in the text of §10(j) of the NLRA’s that would displace those traditional equitable principles; its authorization of injunctive relief when “just and proper” is best seen as just a reference to courts’ ordinary authority to grant equitable relief. In contrast, the Sixth Circuit’s two-part test, which is satisfied whenever there is “reasonable cause” to believe an unfair labor practice has occurred, improperly abrogates courts’ authority by yielding to the NLRB’s preliminary judgment of the merits and permitting an injunction simply because the agency’s claim is substantial and not frivolous. Instead, basic equitable principles require courts to decide the likelihood of success on the merits for themselves, which they can do without infringing on the NLRB’s own jurisdiction to issue the initial merits decision in the agency proceeding. The Court therefore vacated the preliminary injunction and remanded for further proceedings under the proper standard.

Justice Jackson issued a solo dissent. She agreed with the majority that courts must apply the traditional four-factor test for a preliminary injunction. But she emphasized that a statute must be interpreted based on its context, leading her to a result somewhere in between the majority’s test and the two-part test it rejected. Specifically, for the likelihood of success factor, because Congress has given the Board the primary authority to address labor policy and adjudicate labor disputes, and because expert agencies are owed deference by courts, that factor in the injunction analysis “should be far less searching than normal.” Jackson would have concluded it is met whenever the NLRB can present some evidence to support the unfair labor practice charge along with an arguable legal theory. Jackson noted, however, that her disagreement with the majority was relatively inconsequential, because the NLRB rarely seeks §10(j) relief in the courts.

In Coinbase, Inc. v. Suski (23-3), Justice Jackson took the pen for a unanimous Court, holding that when two parties’ relationship is governed by two contracts, one calling for arbitration of disputes while the other does not, courts (rather than an arbitrator) should decide which contract governs a particular dispute. And that is so even if the first contract contains a provision explicitly granting the arbitrator the exclusive authority to decide the scope of the parties’ arbitration agreement.

The facts of the case demonstrate a problem that is hardly unique: Coinbase, a cryptocurrency exchange platform, had a User Agreement with an arbitration clause, which required the platform’s users to arbitrate disputes related to their use of the platform. That agreement also included a so-called delegation clause, which explicitly gave the arbitrator (not a court) the authority to decide whether any particular dispute fell within the scope of the arbitration agreement. If that were the only contract, there wouldn’t be much of a case here: The parties clearly would have agreed that the arbitrator alone gets to decide the scope of the User Agreement’s arbitration clause. But it wasn’t: Coinbase decided to run a sweepstakes, and the “Official Rules” for the sweepstakes contained a forum-selection clause providing that California courts would “have sole jurisdiction of any controversies regarding the [sweepstakes] promotion.” The apparent conflict between these two contracts came to a head when a class of Coinbase users sued alleging that the sweepstakes violated California advertising and competition law. Coinbase sought to compel arbitration, citing the User Agreement and arguing that it gave the arbitrator alone the power to decide whether the sweepstakes’ Official Rules displaced the User Agreement’s arbitration clause. But the District Court and then the Ninth Circuit brushed that argument aside, concluding that the Official Rules’ forum-selection clause trumped the User Agreement, requiring the case to be litigated in California Court. The Supreme Court then granted certiorari solely on the question of who gets to decide if a matter is arbitrable when, as here, there are two seemingly conflicting contracts, one of which contains a delegation clause.

Writing for a unanimous Court in what may prove to be the shortest opinion of the term, Justice Jackson found the answer to be pretty simple. Arbitration is a matter of contract, so the ultimate question is what the parties agreed to. When there are two contracts, one compelling arbitration and the other providing that disputes should be resolved in court, courts, must arbitrators, must decide which contract applies to a particular dispute. And while it’s true that one of those contracts—the User Agreement—contained a delegation clause, empowering the arbitrator to decide whether any particular dispute was subject to arbitration, the plaintiffs were right to point out that the Official Rules at least arguably displaced that contract for disputes about the sweepstakes. Only after deciding which agreement applied could one conclude that the delegation clause governed, so a court had to make that decision before sending the case to arbitration. But having concluded that the lower courts were right to decide for themselves whether the Official Rules displaced the User Agreement’s arbitration and delegation clauses, the Court went no further, as it had never agreed to take up the question of whether the lower court’s conclusion that the second contract controlled was right.

Justice Gorsuch penned a short concurring opinion to note that there might be some contracts where the language is so explicit that a court should “step aside” absent clear evidence the parties intended to amend the first contract. But given that the Court was not even rendering an opinion on the merits of which contract governed here, he agreed with the “bottom-line” conclusion that a court must decide whether and to what extent parties have agreed to arbitrate.

Finally, in Brown v. United States (No. 22-6389), the Court grappled with one of its favorite foes, the Armed Career Criminal Act (ACCA). As even lukewarm Court Fans know, ACCA imposes a 15-year mandatory minimum sentence on defendants who are convicted of illegally possessing a firearm and have a criminal history including three or more convictions for a “violent felony” or “serious drug offense.” As we had occasion to remark back in OT21, “[t]he statute has been a (very very very very very very) steady companion for Court Fans over the years,” typically in cases applying the so-called “categorical approach” to figure out whether a state crime “matches” the federal definition of a violent felony or serious drug offense. And, after a term off, here we go again.

The specific question in Brown was whether a state crime constitutes a “serious drug offense” if it involved a drug that was on the federal drug schedules at the time the offense was committed, but was later removed. Petitioners Rashad Brown and Eugene Jackson were separately convicted under the “felon in possession” statute, 18 U.S.C. §922(g)(1), and slapped with ACCA’s 15-year minimum sentence due to their prior state drug convictions. Brown had four Pennsylvania convictions for possessing marijuana with intent to distribute. At the time of the offenses, both Pennsylvania and federal law defined marijuana in the same way. But before he was convicted, Congress modified the federal definition to exempt hemp. Under the categorical approach, it didn’t matter whether Brown’s prior convictions involved hemp; since the state and federal definitions were no longer a categorical “match,” Brown argued his prior convictions were not for “serious drug offense[s],” such that ACCA applied. Jackson, meanwhile, had several Florida convictions, including two for possession and distribution of cocaine. While the state and federal definitions of cocaine were the same at the time of the offenses, the Federal Government legalized a “radioactive cocaine derivative called [¹²³I]ioflupane,” which is an ingredient in a drug used to diagnose patients with Parkinson’s disease. So, while Jackson almost certainly wasn’t distributing this radioactive derivative when he was convicted under Florida law, he argued that the convictions did not qualify as serious drug offenses under federal law. No categorical match, no 15-year mandatory minimum. But, in each case, the lower courts rejected these arguments and found that a prior drug conviction qualifies as an ACCA predicate so long as the state and federal definitions of the drug in question matched at the time of the offense.

The Supreme Court affirmed, 6-3. Writing for the majority, Justice Alito observed that the three parties—Brown, Jackson, and the Government—had proposed three different rules for when (and for how long) state and federal drug definitions must “match” in order to trigger ACCA’s sentence enhancement. The Government argued that the definitions only need to match at the time the defendant committed the state drug offenses; Jackson argued that the definitions must continue to match at the time the defendant violated the felon-in-possession statute; and Brown argued that the definitions must continue to match when the defendant is sentenced for the felon-in-possession offense—i.e., at the time the ACCA enhancement would be applied. While Alito felt that the operative statutory text—“involving … a controlled substance . . . as defined in . . . the Controlled Substances Act”—did not answer the question, he concluded that “precedent and statutory context show that the Government’s interpretation is correct.”

Precedent, Alito noted, requires sentencing courts applying ACCA to examine the law as it was when the defendant violated it. That “backward-looking” approach supports the view that all that matters is whether the drug in question was “a controlled substance” as defined on the federal drug schedules at the time of the state offense. And the surrounding statutory text supported that view, since another ACCA provision defines a “serious drug offense” to include federal “offense[s] under the Controlled Substances Act.” It would make little sense, Alito insisted, for a federal conviction for an “offense under the Controlled Substances Act” to remain an ACCA predicate even if the CSA’s drug schedule is later changed, while a state conviction “involving” the same drug (“as defined in [the CSA]”) would not. “[I]t would be unnatural,” Alito argued, “to give back-to-back references to the CSA starkly different interpretations.” Finally, Alito maintained that the Government’s interpretation best fulfilled ACCA’s statutory objectives. Congress made a determination that defendants who have repeatedly committed “violent felon[ies]” or “serious drug offense[s]” are “especially likely to inflict grave harm when in possession of a firearm” and therefore created a harsh mandatory minimum to deter that conduct. But a defendant’s “history of criminal activity” doesn’t go away merely because his earlier crimes were later redefined. What matters is whether the crime met ACCA’s definition of seriousness at the time it was committed, not later.

Justice Jackson, joined by Justice Kagan and (mostly) Justice Gorsuch, dissented. In her view, “the relevant [statutory] text does definitively answer the question presented,” such that the majority’s recourse to precedent, context, and purpose, is misguided. ACCA expressly defined the term “serious drug offense” by reference to another federal law, the CSA, which in turn defines what drugs qualify as “controlled substance[s]” by referencing the five federal drug schedules that are updated annually by the Attorney General. Though Congress could have simply relied on state law to define the term, it instead “opted to rely on a federal statute that contains its own cross-reference to a dynamic list of prohibited substances. ACCA’s ‘serious drug offense’ definition thus incorporates those oft-changing drug schedules by reference.” By using this cross-reference, ACCA necessarily directs sentencing courts to consult the current federal drug schedule, rather than some earlier version. “That,” she maintained, “is, quite simply, how cross-references work. When it comes time to interpret a statute, courts typically plug the referenced provision, as they find it, into the statutory text. They do not consider, much less account for, any amendments that might have taken place over the course of the referenced provisions’ existence.” Quoting a Scalia concurrence to bolster her textualist take, Jackson noted that “the presumed temporal application of a statute is when the relevant activity that the [statute] regulates occurs.” So, in the case of ACCA and the felon-in-possession statute, what matters is the content of the CSA (and cross-referenced drug schedules) at the time the defendant illegally possesses a firearm, as that is the relevant proscribed activity.

That textual analysis was enough for Justice Gorsuch, but Justice Jackson (joined now only by Kagan) went further to explain how her reading fit with “ACCA’s actual goals.” As she saw it, Congress included serious drug offenses as ACCA predicates because it viewed “the seriousness of [a] defendant’s prior drug-related history [a]s indicative of that defendant’s future dangerousness.” But future dangerousness is not well assessed by reference to outdated drug schedules. “[I]f the point of ACCA is the incapacitation of certain defendants—those whose histories of serious criminality indicate a propensity to commit future dangerous climes in light of their unlawful possession of a weapon—how does a record that contains past crimes involving drugs that are no longer controlled substances help to identify especially dangerous defendants?”